By the Court,
Bronson, J.The service was not sufficient. The 11th rule of this court authorizing papers to be left in some suitable and conspicuous place in the office clearly contemplates a case where the office is onen. When the office is left in such a condition that third persons can enter, it may reasonably be presumed that the owner is only absent for a short period, and that papers left on his desk or table will come to his hands on the same day. But when the office is shut and locked, there is no foundation for such a presumption, and the service should be made at his residence. It is enough, however, that the rule is explicit “ if the office be not open so as to admit of service therein,” then service is to be made at the attorney’s residence.
[579] The attorney must have the costs of appearing to make the objection. There was formerly some doubt about the practice on this point; but it is now settled, that iha party is entitled to costs where he appears and objects that the notice was insufficient. Although the court will not suffer a rule to be taken by default without proof of service of the papers, defects and insufficiencies may sometimes pass unobserved, if the party do not appear to make the suggestion; and this lays the foundation for a second motion to correct the error. (9 Wendell, 450.) As the defect here appears on the papers of the party moving, and is not waived, he should only be charged with the costs of appearing, and not with any papers which may have been prepared in opposition to the motion.
Motion denied, with costs as above.